Summary
In Furlong, the court held that a police detective who sought to obtain a search warrant could not show that he had probable cause to secure the warrant because he could not attest to the reliability of his informant, with whom he had no previous dealings.
Summary of this case from Smith v. GomezOpinion
No. 264.
Argued May 1, 1970. —
Decided June 5, 1970.
APPEAL from an order of the circuit court for Waukesha county: CLAIR VOSS, Circuit Judge. Reversed and cause remanded.
For the appellants the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Robert W. Warren, attorney general, and Roger P. Murphy, district attorney of Waukesha county.
For the respondent there was brief by Lowry, Hunter Tikalsky of Waukesha, and oral argument by Scott V. Lowry.
On June 12, 1968, Detective Charles W. Johnson of the Waukesha Sheriff's Department appeared before the Hon. DAVID L. DANCEY, County Judge of Waukesha county court, branch 1, for the purpose of obtaining a search warrant for certain premises. For the purpose of establishing probable cause for the issuance of the search warrant, Detective Johnson testified that on June 11, 1968, he stopped two youths while investigating an alleged theft. After stopping the two young men, the detective searched them. He found three pills on the person of one of them, Charles Raasch, and the other youth voluntarily turned over three pills which he had in his possession. This second youth told the detective that the pills were "speed" pills. According to Detective Johnson, the six pills were subsequently analyzed by a pharmacist who concluded that they were indeed amphetamine, commonly known as "speed." This is classified as a dangerous drug under sec. 151.07, Stats.
Detective Johnson further testified that in the absence of Charles Raasch, the second youth informed him that there was to be a delivery of marijuana in the county during the evening of June 12, 1968.
This youth also informed Detective Johnson how they had come to possess the "speed" pills. According to him, Raasch and he had been at the Furlong residence at 2919 North Mill Road earlier in the evening of June 11, 1968, and Raasch had bought nine of these tablets; he took (apparently ingested) three of them, gave the second youth three and kept the remaining three for himself. Both Raasch and the other young man were present at the time the purchase was made.
Detective Johnson further testified that his informant (the second youth) indicated there would be a "big bundle of marijuana" on the Furlong premises at approximately 10:30 that night (June 12, 1968).
On being questioned, Detective Johnson responded:
"Q. . . . Are you personally acquainted with this informant?
"A. Yes, sir.
"Q. Have you had dealings with him in the past?
"A. Yes.
"Q. Would you consider him to be reliable?
"A. Yes.
"Q. Has information you have received from him in the past proved reliable?
"A. Yes, sir."
In addition to Detective Johnson, a pharmacist also testified at this hearing to obtain a search warrant. The pharmacist identified the six pills as Desbutal Gradumet, the active ingredient of which is amphetamine.
On the basis of the testimony at this hearing of Detective Johnson and the pharmacist, Judge DANCEY made the following statement:
"The court will in this matter find that there's probable cause for the issuance of a warrant for the search of the premises at 2919 North Mill Road, Town of Summit, the premises of Henry Furlong, or that which may be found upon the person of William Furlong who resided at this address or any other persons therein present including marijuana or heroin or hemp in raw form or concealed in cigarettes possessed for the purpose of giving or selling to persons under the age of 21 years and also including therein other drugs which may be prohibited under chapter 161 of the statutes including these Desbutal tablets, LSD or other hard drugs.
". . .
"Or under section, chapter 151.07."
Until Judge DANCEY referred to the defendant William Furlong by name in granting the search warrant, his name had not been mentioned in the record by either Detective Johnson, the pharmacist, or the district attorney. No arrest warrant was ever issued in this case.
At about 1:30 a.m., on June 13, 1968, the search warrant was executed and the detectives then found on the premises a four-ounce package of marijuana, pipes used for smoking marijuana, and some green and black pills which Detective Johnson tentatively identified as librium. After the search, the defendant William R. Furlong was arrested on the premises.
Later that day, June 13, 1968, a criminal complaint was made charging defendant with two crimes:
1. That on June 10, 1968, he had unlawfully possessed dangerous drugs in violation of sec. 151.07 (7), Stats., and
2. That on June 12, 1968, he had used marijuana for smoking purposes in violation of sec. 161.275 (3), Stats.
Thereafter, on July 9, 1968, counsel for defendant entered a special appearance for the purpose of objecting to court's jurisdiction. A hearing was held before the Hon. WILLIAM G. CALLOW, County Judge of branch 2, Waukesha county court. At this hearing on July 9, 1968, Detective Johnson testified as follows on adverse examination:
"Q. How many times prior to the issuance of the search warrant had you had dealings with the informant?
"A. Other officers from our department have been in contact with him.
"Mr. Anderson: I object; not responsive.
"The Court: I think the question is improper. However, the district attorney has raised no objection. You may proceed. The objection is sustained.
"A. I have had no prior contact with the informant. "Mr. Lowry:
"Q. You then have no knowledge as to his reliability?
"A. That's correct."
At this hearing Detective Johnson also testified that he was one of the officers who arrested the defendant and that prior to the arrest he had searched the Furlong premises. He further testified that it was because of evidence received from a search of the premises that a determination of probable cause was made to arrest William Furlong. In addition, he indicated the determination of probable cause was made solely upon evidence obtained from the search of the Furlong premises. Prior to this hearing, the defense counsel had made several motions including the allegation that the officers lacked probable cause to arrest the defendant because the search warrant was illegal.
On September 19, 1968, Judge CALLOW dismissed and denied all defense motions. Subsequently, defense counsel moved Judge CALLOW to reconsider his decision of September 19, 1968. After a delay to await this court's decision in State v. Beal, on February 6, 1969, Judge CALLOW refused to change his denial of the motion.
(1968), 40 Wis.2d 607, 162 N.W.2d 640.
Thereafter, defense counsel moved to suppress the evidence on the basis of Spinelli v. United States (decided after the search warrant was issued in this case). On May 28, 1969, Judge CALLOW again affirmed his prior decision.
(1969), 393 U.S. 410, 89 Sup. ct. 584, 21 L.Ed.2d 637.
Defense counsel then petitioned the circuit court for Waukesha county for a writ of prohibition. On June 5, 1969, Circuit Judge CLAIR VOSS issued an alternative writ of prohibition. A motion to quash the alternative writ of prohibition and a return were made on behalf of the county court, judges and district attorney. On June 25, 1969, the circuit court issued a decision in which it ordered the issuance of a writ of prohibition absolute. Judge VOSS based his decision in part upon the following reasoning as stated in his decision:
". . . it is the opinion of the court that the issuance of the search warrant was in violation of Wisconsin law and the rules set forth by the United States Supreme Court. That, therefore, the evidence obtained in the search of the Furlong premises on June 13, 1968, which was the basis for the arrest of William R. Furlong, was not properly admissible and that, therefore, William R. Furlong was arrested without probable cause, and that the county court of Waukesha county was without jurisdiction to proceed further in this case."
A writ of prohibition absolute was issued on July 1, 1969, and it commanded the county court and the judges thereof to "absolutely desist and refrain from any further proceedings in said action."
The county court, the judges thereof, and the district attorney for Waukesha county appeal.
I. Prohibition.
The first issue confronting this court is whether prohibition in the circuit court was the proper method for defendant to test the criminal action against him in the county court.
We have considered this very issue in a number of recent decisions. ". . . Prohibition will not lie whenever habeas corpus or other adequate remedy is available."
See State ex rel. Cullen v. Ceci (1970), 45 Wis.2d 432, 173 W. 2d 175; State ex rel. Jefferson v. Roraff (1969), 44 Wis.2d 250, 170 N.W.2d 691; State ex rel. Dore v. Stoltz (1969), 42 Wis.2d 534, 167 N.W.2d 214, and cases cited therein.
State ex rel. Cullen v. Ceci, supra, footnote 3, at page 440.
Defendant seeks to suppress any prosecution based on evidence seized as a result of the search warrant which he contends was illegally issued.
The skeletal framework of defendant's syllogism is: The search warrant issued by Judge DANCEY was constitutionally defective; the defendant was arrested as a result of evidence obtained during an illegal search; therefore, defendant's arrest is invalid.
The record reveals that this argument or a variation thereof has consistently been made by the defendant throughout this action, and further, that the above syllogism provided the basis for Judge VOSS'S reasoning in granting the writ of prohibition absolute.
But defendant could test his contentions by habeas corpus. Prohibition was inappropriate when this other adequate remedy, habeas corpus, was available for testing this alleged illegal search.
State v. Kanieski (1966), 30 Wis.2d 573, 141 N.W.2d 196; Wolke v. Fleming (1964), 24 Wis.2d 606, 129 N.W.2d 841; certiorari denied, 380 U.S. 912, 85 Sup. Ct. 897, 13 L.Ed.2d 798.
II. Assumed proper jurisdiction to test search.
While prohibition was not the proper remedy and, in any event, the circuit court should not have barred prosecution of Furlong for his alleged crimes, it was within the circuit court's power to declare Furlong's arrest illegal based as it was on evidence seized as a result of a search made under cover of an illegal search warrant. Since Furlong could reach this by habeas corpus, we will regard Furlong's petition to the circuit court as being a petition for habeas corpus.
III. Search.
So the issue now is: Was the search illegal?
The search of the Furlong premises was accomplished by virtue of a search warrant issued by Judge DANCEY. It is well established that a search warrant may issue only upon a finding of probable cause by a neutral and detached magistrate. The probable cause necessary to be shown for the issuance of a search warrant is less than the evidence which would justify condemnation or be competent in a preliminary examination. It is permissible in this state for a search warrant to be issued based on hearsay information. However, the magistrate must be informed in the manner provided by sec. 963.02, Stats., of the underlying circumstances supporting the complainant's averment that the informant, whose identity by name need not be disclosed, was credible or his information reliable.
See State v. Beal, supra, footnote 1.
Id. at page 614.
Id., citing Aguilar v. Texas (1964), 378 U.S. 108, 114, 84 Sup. Ct. 1509, 12 L.Ed.2d 723.
The rules applicable at the time as to the required showing of the reliability of an informant were those of Aguilar v. Texas. Mr. Justice HEFFERNAN, in State v. Williams, decided June 2, 1970, quoted Aguilar as follows:
Supra, footnote 8. Requirements of Aguilar were expanded by Spinelli v. United States, supra, footnote 2, decided after the search warrant was issued in this case and therefore inapplicable.
"`Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, was "credible" or his information "reliable." Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," Giordenello v. United States, supra, at 486; Johnson v. United States, supra, at 14, or, as in this case, by an unidentified informant.' Aguilar, supra, at 114, 115."
State v. Williams, ante, p. 242, 177 N.W.2d 611.
Detective Johnson, at the time he testified to obtain the warrant, asserted that the informant was reliable and that he had dealings with him in the past and that the informant had proven reliable. Subsequent testimony by Detective Johnson flatly contradicted these assertions. At the July 9th hearing it was established that Detective Johnson had had no previous dealings with the informant; therefore, it would be impossible for him to personally attest to the informant's reliability.
It appears that while it may be conceded that the second prong of the Aguilar test can be met by the facts in this record, the first prong has not been satisfied. The state's argument that Detective Johnson, when answering questions as to the reliability of the informant, thought that the "you" used in the questions was collective referring to the Waukesha Sheriff's Department, is untenable. The detective was specifically asked whether he personally was acquainted with the informant, to which he replied affirmatively.
Thus, it is submitted there was not sufficient probable cause for Judge DANCEY, acting as magistrate, to issue the search warrant. It may well be that Judge DANCEY had information other than what appeared in the record which would establish probable cause. In fact, it is apparent from the record itself that not everything brought to the judge's attention was reported on the record. The illustration of this is that Judge DANCEY himself was the first to refer to the defendant by name. It is impossible on review to know what this other information was: ". . . It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate's attention."
Aguilar v. Texas, supra, footnote 8, at page 109, note 1 (emphasis in original).
IV. Arrest.
The remaining issue and perhaps the underlying issue of this entire discussion is: Can an arrest be based on an invalid search?
The circuit court concluded that it could not. We agree.
It is apparent that the purpose of the police in entering the Furlong premises was not to make an immediate arrest for a crime that had been or was being committed, but rather for the purpose of searching the premises and obtaining information upon which an arrest might then be made. This fact is evidenced by the abortive search warrant. Since, as has been submitted, the search warrant was invalid, it can be treated as if it did not exist. Then this case is analogous to Allen v. State, a prohibition era case, wherein the defendant was stopped by two police officers and asked if he had liquor on his person, to which he replied affirmatively. A search followed and a pint of liquor was found on the defendant. An arrest followed, based upon the evidence obtained by the search. Defendant's conviction was reversed by this court, which said:
(1924), 183 Wis. 323, 197 N.W. 808.
"Had the officers made a legal arrest they would have been justified in their search of the defendant. Or had the officers made a legal search of the defendant they would have been justified in making an arrest upon finding defendant violating the law. But the officers did neither. They had no warrant to arrest; they had no warrant to search. So, assuming that the arrest was made before the search, the arrest was illegal and the search following was illegal; or, assuming the search was made before the arrest, the search was illegal and the arrest based thereon without a warrant was illegal."
Id. at page 333; see also: Browne v. State (1964), 24 Wis.2d 491, 506, 129 N.W.2d 175, 131 N.W.2d 169. See generally: Annot. Search and Seizure Before Arrest (1963), 89 A.L.R. 2d 715.
In Allen, as in the instant case, in the absence of the results of the search there was no probable cause for the arrest. To justify a search as an incident of a lawful arrest the officers must either have a warrant for the arrest or probable cause therefor before the search is made. However, it is not necessary that the arrest be actually made prior to the search. The point is that the validity of the arrest must not depend upon the result of the search but the grounds of arrest must exist independently thereof.
See Platz, Work of the Wisconsin Supreme Court, 1946 Wis. L, Rev. 53, 54.
In this case, Detective Johnson testified that the only basis for arrest was the evidence recovered during the search. This arrest was invalid. Therefore, the Waukesha county court had no jurisdiction over defendant and an order was properly issuable barring any prosecution based on the evidence obtained as a result of the search made under the authority of the illegally issued search warrant. But Furlong can still be prosecuted on the basis of any other evidence that the state may possess. This may be especially true as to count one of the June 13, 1968, complaint pertaining to the alleged possession of dangerous drugs on June 10, 1968, in violation of sec. 151.07 (7), Stats.
Although we agree with the net result of the trial court's disposition of this cause except for the extent of its prohibition writ, we must reverse and remand for further proceedings for the entry of a proper order under habeas corpus and in accordance with the holdings embodied in this opinion.
By the Court. — Order reversed and cause remanded for further proceedings consistent with this opinion.
The writer concurs with the reversal, but dissents from the remand. The appeal is from the issuance of a writ of prohibition absolute. The majority opinion concedes that "prohibition was not the proper remedy." However, the majority refashions the writ of prohibition into a writ of habeas corpus, and returns the matter to the circuit court for relabeling of the action taken. We find no compelling reason for this court "regarding" a writ of prohibition absolute as a different type of writ in order to, even in part, sustain it. Additionally, we have serious doubts as to whether the retailored garment fits the situation. Here the defendant, arrested in June of 1968, is and has been at liberty and not deprived of his liberty ever since. See: Annot. Right of one at large on bail to writ of habeas corpus, 77 A.L.R. 2d 1307, 1308; Odell v. Haas (D.C. Wis.), 280 F. Supp. 208. The sole purpose and effect of the writ was to prevent the county court from holding a preliminary hearing and ruling on all issues there raised. The label is changed but the substance of what is accomplished is unchanged. In a recent case, this court held that prohibition was improper since there was a different adequate remedy available, and there the court did not refashion and rename the writ to accommodate the petitioner. State ex rel. Cullen v. Ceci (1970), 45 Wis.2d 432, 173 N.W.2d 175. The writ of prohibition there was dismissed. Period. The writ of prohibition here should be dismissed. Period.
I am authorized to state that Mr. Justice LEO B. HANLEY and Mr. Justice CONNOR T. HANSEN concur in this dissenting opinion.